Porriello: CUE, res judicata

Porriello v. Shulkin, 30 Vet.App. 1 (Mar. 12, 2018)

HELD: A challenge to the Board’s jurisdiction to address a specific allegation of clear and unmistakable error (CUE) must be raised during the appeal period of the relevant decision and cannot later be challenged on the basis of CUE when the appeal period has passed and additional appellate tribunals have already issued final decisions on the matter.

 SUMMARY: Mr. Porrriello’s enlistment examination noted no conditions, but he was hospitalized in service for ulcerative colitis, which was determined to have pre-existed service by a 1961 Medical Board. Shortly after separation, he applied for disability benefits and was denied in March and July 1961. He did not appeal, but did file another claim in 1967, which was denied in June 1968. In January 2005, he was finally granted benefits based on new medical evidence. One month later, he submitted a statement, asserting his belief that his claim was “erroneously denied” 40 years ago.

In October 2005, the veteran’s DAV representative characterized the statement as a Notice of Disagreement, but later withdrew the appeal and instead stated that he had argued CUE in the June 1968 decision. There was no mention of the 1961 decision. The RO denied an earlier effective date, but did not mention any specific CUE theory. The veteran appealed, and the RO issued a Statement of the Case stating that he had not provided rationale to support his CUE allegation, but still found no CUE in 1961 and 1968. The veteran filed a VA Form 9. He did not provide any specific theory of CUE, but referred to his entrance examination showing no evidence of a pre-existing condition. The DAV representative then submitted a document identifying the issue as CUE in the 1961 decision. The representative described a specific theory of CUE based on a private doctor’s diagnosis of the pre-service symptoms that was different from the in-service diagnosis of ulcerative colitis.

In May 2008, the Board addressed and rejected this CUE theory. Mr. Porriello appealed to this Court, through counsel, and the Court affirmed the Board’s decision. The Federal Circuit, in turn, affirmed this Court’s decision.

In May 2013, Mr. Porriello filed, through counsel, a request for revision of the 1961 decision on the basis of CUE, arguing that the RO failed to properly apply the presumption of soundness. The RO denied the request, noting that the 2008 Board already considered the application of the presumption of soundness. He appealed to the Board and the Board found that it lacked jurisdiction to address his arguments since the 2008 Board decision had considered the presumption of soundness and “the 1961 and 1968 rating decisions were subsumed by the 2008 Board decision.”

 On appeal to the Court, Mr. Porriello argued that the 2008 Board lacked subject matter jurisdiction to consider any CUE allegation in the 1961 and 1968 rating decisions because he never raised any specific CUE allegation “at the outset of proceedings leading to that decision.” Because the Board lacked jurisdiction, he further asserted that neither this Court nor the Federal Circuit had jurisdiction to review the Board’s decision.

 This Court found that Mr. Porriello’s “jurisdictional arguments might have force and weight” – but that “[t]he time for raising such jurisdictional objections, however, has passed” and that he should have raised these issues during his appeal of the May 2008 Board decision. The Court agreed that the Board erred in determining that the 1961 and 1968 RO decisions were subsumed by the May 2008 Board decision. However, Mr. Porriello’s “failure to raise any jurisdictional challenge on direct appeal means that the decisions of the Board, this Court, and the Federal Circuit are both final and valid.” The Court held that “the doctrine of res judicata precludes raising the same CUE theory again,” and affirmed the Board’s decision.

FULL DECISION

Zeglin: Medication copayment reimbursement

Zeglin v. Shulkin, 29 Vet.App. 226 (Mar. 6, 2018)

HELD: The Board’s failure to properly discuss VA’s offset policy was harmless error where the record demonstrates that the Board properly applied the policy. Similarly, the Board’s error in finding “that VA does not have the authority to verify that reimbursements it receives from third-party payors are comparable to that which the third party would pay to a non-federal entity” was also harmless error where VA has established policies for ensuring that the rates are comparable.

SUMMARY: Most veterans are required to pay a copayment for each 30-day (or less) supply of medication. For nonservice-connected veterans, VA can seek reimbursement of reasonable charges from their private health insurance – as long as those charges do not exceed the amount that would be paid to a non-federal entity in the same geographic location. Prior to March 2011, VA billed private health insurers a flat rate of $51 for each prescription, regardless of the length of the supply. In March 2011, VA changed its billing practices to more accurately reflect the cost of each medication.

The veteran in this case accrued an outstanding balance of unpaid medication copayments and was denied a waiver of the debt owed to VA. He appealed to the Board, and the Board determined that VA properly charged him an $8 copayment for each 30-day supply of medication. He appealed to the Court.

The Secretary and the Court agreed with Mr. Zeglin that the Board erred in its discussion of VA policy “to offset a veteran’s copayment charge dollar-for-dollar with the amount received from a third[-]party insurance company regardless of whether that amount is less than the amount billed to the third party.” However, because the Board properly applied that policy, the Court determined that the error was harmless.

The Secretary and the Court also agreed with Mr. Zeglin that the Board erred in finding that VA was not authorized to verify that “reimbursements received from third-party payors are comparable” to payments the third party would make to a non-federal entity for the same medication. However, the Court again found that this error was harmless based on information provided by the Secretary showing that VA “has an established third-party payor review process that evaluates reimbursement rates” and that VA will initiate “a formal rate verification” when a third-party insurer reimburses a below-market rate. The Court thus determined that Mr. Zeglin failed to show how he was prejudiced by the Board’s errors, and affirmed the decision.

FULL DECISION

Bly: EAJA, timeliness

Bly v. Shulkin, 883 F.3d 1374 (Mar. 2, 2018)

HELD: Unless a Court order specifically prohibits an appeal, an order granting the parties’ motion for remand will become final and “‘not appealable’ 60 days after the entry of the remand order.”

SUMMARY: The Equal Access to Justice Act (EAJA) requires an application for attorney fees to be filed “within 30 days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). Mr. Bly’s attorney filed his EAJA application with the CAVC 31 days after the Court issued its order granting the parties’ joint motion for remand. The Court, relying on three of its own rules of practice and procedure, denied the application because it was one day late. These rules state that (1) an EAJA application must be made “not later than 30 days after the Court’s judgment becomes final”; (2) when the Court remands a case on the parties’ consent, judgment is effective the date of the Court order when that order states that it constitutes the mandate of the Court; (3) mandate is when the Court’s judgment becomes final; and (4) mandate is generally 60 days after judgment, unless it is “part of an order on consent … remanding a case” or “the Court directs otherwise.” See Rules 39(a), 36(b)(1)(B)(i), 41(a) and (b). 

The Federal Circuit reversed the CAVC’s decision based on the EAJA’s definition of “final judgment” as a “judgment that is final and not appealable, and includes an order of settlement.” Mr. Bly argued that his EAJA application was timely because the “Court’s judgment was not yet ‘final and not appealable’ until 60 days after the date of the remand order.

The Federal Circuit noted that the courts of appeals have taken two different approaches to the issue of finality for EAJA purposes. Under the “uniform” approach, the time to file an EAJA application “would run from the expiration of the time for appeal, without consideration of whether the particular final judgment would have or could have been appealed.” The “functional” approach, on the other hand, requires a “case by case exploration of whether an appeal could have been taken by either party.” The Federal Circuit had previously “adopted the uniform rule for voluntary dismissals, ‘at least where the order of dismissal does not specifically prohibit appeal’” – and saw no reason to depart from that approach in the context of “consent judgments,” as in this case. The Court thus held that the “consent judgment here became ‘not appealable’ 60 days after the entry of the remand order” – and, therefore, Mr. Bly’s EAJA application was timely. 

The Secretary had also argued that the CAVC order granting the parties’ joint motion for remand was “an order of settlement” and, therefore, a final judgment under the EAJA. The Federal Circuit rejected this argument because the order granted the motion to remand did not resolve the underlying service-connection dispute. The appeal would go back to the Board – and may even return to the Court – so the Federal Circuit did not this fit within the plain meaning of “settlement.” The Federal Circuit remanded this matter to the CAVC to consider the merits of the EAJA application. 

FULL DECISION

Golden: GAF scores, rating psychiatric conditions

Golden, Jr. v. Shulkin, 29 Vet.App. 221 (Feb. 23, 2018)

HELD: “Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court holds that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies.” 

SUMMARY: Veteran is service connected for PTSD, rated 70%. He appealed for a higher rating – and his appeal was certified to the Board in June 2015. The Board denied a higher rating based on the veteran’s GAF scores –even though it acknowledged that the DSM-5 applied to claims certified to the Board after August 4, 2014, and that this edition of the DSM had eliminated the use of GAF scores. 

The Court recognized that VA is required to evaluate a disability “in relation to its history,” per 38 C.F.R. § 4.1, and to consider all medical and lay evidence of record –which may include GAF scores.The Court emphasized that VA’s ”rating analysis for psychiatric disorders has always been ‘symptom driven,’ meaning that ‘symptom[s] should be the fact finder’s primary focus” when assigning a rating.” The Court thus clarified: “to the extent that the Board may have been tempted to use numerical GAF scores as a shortcut for gauging psychiatric impairment, such use would be error.” 

FULL DECISION

Turner: 38 C.F.R. § 3.156(b), "constructively" received VA medical records

Turner v. Shulkin, 29 Vet.App. 207 (Feb. 8, 2018)

HELD: Under38 C.F.R. §3.156(b), if new and material evidence (which could include VA treatment records)  is “received” during the one-year appeal period following a regional office (RO) decision, the RO is required to consider that evidence as having been submitted with the original claim and proceed accordingly.” VA treatment records can be “constructively” received, which requires VA adjudicators to “have sufficient knowledge, within the one-year appeal period following an RO decision, that the records exist, although they need not know the contents of such records.” Until the RO reconsiders the claim with the newly received (or constructively received) evidence, “the denied claim remains pending.”

FULL DECISION

Harvey: Attorney serving as expert witness

Harvey v. Shulkin, docket no. 16-1515 (Feb. 7, 2018)

HELD: Whether an attorney’s submission should be treated as a medical opinion depends on several factors, including (1) the text of the submission, (2) the identification of the author as attorney or medical professional, (3) the indicators of legal advocacy/argument in the submission, and (4) the presence of a medical opinion with supporting rationale. 

SUMMARY: Mr. Harvey appealed the denial of service connection for sleep apnea. At the agency level, he was represented by David Anaise, a licensed medical doctor, attorney, and accredited VA representative. In his “appeal brief” to the RO, he stated that the veteran’s sleep apnea was more likely related to his service-connected PTSD on a secondary basis, and cited supporting medical literature. The Board denied service connection, relying on a negative C&P opinion and stating that “[t]here are no contrary opinions of record.” 

On appeal to the Court, Mr. Harvey argued that the denial was in error because the Board failed to address the favorable medical opinion “submitted by his attorney-physician representative.” The Court noted that VA law does not establish requirements for determining “whether a specific submission constitutes a medical opinion” and declined to “prescribe absolute requirements” for such determinations. The Court held that these determinations are “to be undertaken individually,” and that the Board may “be obligated to assess whether that submission is a medical opinion and consider it in adjudicating a claim.” 

The Court outlined several factors that should be considered in making this assessment, including whether the author of the submission identified himself/herself as a medical professional, whether the content of the submission indicated that it was legal argument, and whether the content of the submission indicated that it was a medical opinion. Because Mr. Anaise did not identify himself as acting in the capacity of a medical professional, and because the submission contained indications of legal argument and no indication that it was a medical opinion (i.e., there was no language, such as “in my medical opinion”), the Court determined that the Board did not err by failing to treat this submission as a medical opinion. 

The Court also ordered oral argument for the parties to address the ethical issue of an attorney representative serving as an expert witness in a case. Because the Court held that Mr. Anaise’s “brief” was not a medical opinion, it found there was no violation of Rule 3.7 of the Model Rules of Professional Conduct.

Finally, the Court addressed the appellant’s argument that “the Board improperly relied on its own medical judgment to determine that the article reflected a correlative rather than a causal relationship between PTSD and sleep apnea.” The Court discussed the medical treatise evidence that had been submitted and stated that it is within the Board’s purview to interpret such treatise’s meaning and assess its probative value. The Court found that the Board correctly applied the legal standard required for assessing service connection on a secondary basis. The Court explained that that “correlation” between a service-connected condition and a secondary condition is not sufficient to establish secondary service connection; “a causation or aggravation relationship is required.” 

FULL DECISION

George: 38 C.F.R. § 3.156(c) & CUE

George v. Shulkin, 29 Vet.App. 199 (Feb. 5, 2018)

HELD: Upon receiving new service records, VA must “reconsider” a claimant’s original claim even if service connection has already been granted with a later effective date. However, “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1),” the Court in this case did not find CUE in the Board’s determination that a proper reconsideration occurred. 

SUMMARY: In 1998, the RO denied Mr. George’s claim for service connection for PTSD because there was no confirmed PTSD diagnosis and no in-service stressor. In 2003, the veteran requested reopening. VA obtained service records, confirming the in-service stressor, and granted service connection, effective 2003. Mr. George appealed, arguing that 1998 denial should be reconsidered under 38 C.F.R. § 3.156(c). 

In 2012, on appeal to the CAVC, the parties agreed to remand for Board to consider the applicability of § 3.156(c). The Board subsequently remands for a retrospective medical opinion to determine when Mr. George’s PTSD first manifested. The C&P examiner opined that the condition first manifested in 2003, based on the 2003 C&P examiner’s report. 

In 2014, the Board denies entitlement to an earlier effective date, noting that the grant could go back to 1997, but that the first evidence of a PTSD diagnosis was not until 2003. The veteran did not appeal this decision. 

In 2015, Mr. George filed a motion to revise the 2014 decision on the basis of clear and unmistakable error (CUE), arguing that the Board misapplied § 3.156(c). The Board determined that there was no CUE in the 2014 decision because the medical evidence did not support a PTSD diagnosis prior to 2003. 

On appeal to the CAVC, the veteran argued that the Board erred in determining that the 2014 decision was not CUE because the Board did not “reconsider” his claim under § 3.156(c)(1), but instead only reviewed the proper effective date under § 3.156(c)(3). He argued that the finality of the original 1997 decision “‘had been undone’ by receipt of new service treatment records, and because the RO never engaged in a full readjudication, the Board erred when it found no CUE.” 

At the very beginning of its opinion, the Court emphasized that “our resolution of the claimed error here under § 3.156(c) is largely dictated by the fact that we consider that matter through the prism of CUE.” (Advocacy note: This point must be emphasized. Had the veteran directly appealed the effective date assigned in the 2003 decision, this issue would not have been subjected to the heightened CUE standard.)

The CAVC discussed § 3.156(c) and found that “upon receiving official service department records in 2007, VA had a duty to ‘reconsider’ the appellant’s 1997 claim for service connection for PTSD, despite the fact that service connection for PTSD was granted in 2007 with an effective date of 2003.” The Court noted that “what would satisfy the reconsideration required is a gray area under existing law,” and noted that “§ 3.156(c) is about more than effective dates; it’s also about development of the claim in at least some respect.” Nevertheless, the Court determined that the Board “applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision.” 

Turning to the question of whether the 2015 Board properly determined that there was no CUE in the 2014 decision, the Court stated: “given the imprecise definition of ‘reconsider’ under § 3.156(c)(1), the Board’s determination that a proper reconsideration occurred based on the gathering of new evidence and the reweighing of old evidence, is not arbitrary and capricious under the deferential CUE standard.” 

In a footnote, the Court acknowledged the appellant’s argument that had the Board conducted a “‘full readjudication’ in 2014, his lay statements may have triggered VA’s duty to assist.” The Court stated that the duty-to-assist argument could have been raised on direct appeal, but noted that it is well established that a duty-to-assist violation cannot be CUE. 

FULL DECISION

Kisor: Petition for panel, en banc rehearing denied

Kisor v. Shulkin, 880 F.3d 1378 (Jan. 31, 2018) (per curiam order)

SUMMARY: The majority of the en banc Court denied the petition for rehearing. However, three judges dissented on the basis that the original panel decision was predicated on Auer deference, “despite the Supreme Court’s repeated reminder that statutes concerning veterans are to be construed liberally in favor of the veteran.” 

FULL DECISION 

Rosinski: Standing to Challenge VA Policy Re: Access to Preliminary Decisions

Rosinski v. Shulkin, 29 Vet.App. 183 (Jan. 26, 2018) (per curiam order)

HELD: Attorney lacks standing to challenge VA policy limiting access to preliminary VA rating decisions to VSOs.

SUMMARY: VA has a policy that allows VSOs access to preliminary rating decisions before they are promulgated, which enables VSOs to identify any clear errors before the decisions are issued. VA limits this access to VSOs and does not provide attorneys who represent veterans with access to these preliminary decisions. An attorney challenged this policy as impeding his ability to provide competent representation, violating his rights as an accredited representative, and denying his clients fair process. 

The Court held that the attorney lacked standing to challenge this policy because he did not establish that he suffered an injury (economic harm) as a result of the policy or demonstrate that the policy preventing him from representing his clients. Because the attorney lacked standing and did not show that he had asserted “a claim typical of a class,” the Court further denied the attorney’s motion for aggregate action. 

In a footnote, the Court stated that it did not hold that “attorneyscategorically lack standing to challenge VA’s policy, only that Mr. Rosinski has not demonstrated that he has standing on the facts of this case.” 

In a concurring opinion, Chief Judge Davis wrote that the “increased involvement of attorneys in the adjudication process . . . suggests that the disparate treatment of VSO representatives and attorneys . . . may no longer be rationally justified.” 

FULL DECISION

Marcelino: Obesity is not a "disease" for VA compensation purposes

Marcelino v. Shulkin, 29 Vet.App. 155 (Jan. 23, 2018)

HELD: Because the Court is statutorily precluded from reviewing VA’s rating schedule, the Court lacks jurisdiction to consider whether obesity should be considered a disability under the rating schedule. 

SUMMARY: Mr. Marcelino was denied service connection for obesity because the Board stated that this condition was not a disability for purposes of service connection and VA compensation. 

The Court first noted that it does not have jurisdiction to review the content of VA’s rating schedule, nor can it review “what should be considered a disability.” There are three exceptions to this general principle – cases involving (1) a constitutional challenge, (2) interpretation of a regulation that relates to the rating schedule, and (3) a procedural challenge to VA’s adoption of schedule regulations. Because “obesity” is not listed in the rating schedule, the Court determined that the question of whether VA should include obesity in the schedule did not fall under one of the exceptions and “would require the Court to undertake the very review of the rating schedule that has been barred from its jurisdiction.”  

ADVOCACY NOTE: VA’s Office of the General Counsel issued a Precedent opinion in January 2017 that recognized that while obesity is not a disability for purposes of secondary SC under 38 C.F.R. § 3.310, it can be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOGCPREC 1-2017.

FULL DECISION

Foreman: Amendment to 38 C.F.R. § 3.304(f) is not a liberalizing law for effective date purposes

Foreman v. Shulkin, 29 Vet.App. 155 (Jan. 22, 2018)

HELD: The July 2010 amendment to 38 C.F.R. § 3.304(f) that eased the burden of proof for certain veterans with claims for service connection for PTSD is not a “liberalizing” rule and, therefore, “for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.”

SUMMARY: In 1972, immediately following his separation from service, Vietnam veteran Frazier Foreman submitted a claim for service connection for “fungus or skin disease” and a back condition. His separation examination report notedtrouble sleeping, depression, and nervous trouble, which the examiner characterized as “nervous condition –mild.” 

In 1973, the RO granted service connection for skin, back, and residuals of a right ring finger fracture. The RO referred to Mr. Foreman’s entrance and separation examinations, but mentioned no other conditions. 

Between 2004 and 2008, Mr. Foreman received treatment at VA for post-traumatic stress disorder (PTSD).In 2008, he filed a claim for service connection for PTSD. In July 2010, while his claim was pending, VA amended 38 C.F.R. § 3.304(f) to ease the evidentiary burden on veterans with claims for service connection based on fear of hostile military or terrorist activity. During a C&P examination, Mr. Foreman reported that he was attached to a graves registration in Vietnam and “was exposed to dismembered bodies multiple times over several months.” He reported his belief that he could have been injured and that he felt “horrified.” The examiner determined that he did not have PTSD because he did not have “fear of hostile military or terrorist activity.” The RO denied Mr. Foreman’s claim because he did not have a PTSD diagnosis – even though the RO noted record evidence of prior treatment for PTSD. 

Mr. Foreman appealed and underwent another C&P examination. This examiner diagnosed PTSD, noting the veteran’s traumatic experiences. The RO granted service connection for PTSD, effective March 2011, the date of the most recent C&P examination. 

Mr. Foreman appealed to the Board, and the Board granted an effective date of July 13, 2010, the date of the “liberalizing” change to 38 C.F.R. § 3.304(f). Mr. Foreman appealed to the Veterans Court, arguing that he is entitled to a 1972 effective date because his submission at that time was an informal claim and the 2010 change to § 3.304(f) was “procedural,” so he was not limited to the July 2010 effective date.  

The Court agreed that the § 3.304(f) amendment was procedural and did not preclude an effective date earlier than July 2010. In general, the effective date for any award of benefits is the date VA receives the claim. 38 C.F.R. § 3.400. For claims granted based on change in law (or a “liberalizing” rule), the effective date cannot be earlier than the effective date of the change in law. 38 C.F.R. §§ 3.400(p), 3.114. 

The Court noted that the Federal Circuit previously held that a “liberalizing law for purposes of determining effective dates is one that brings about a substantive change in the law, creating a new and different entitlement to a benefit.” Spencer v. Brown, 17 F.3d 368, 372-73 (Fed. Cir. 1994). The Court stated that VA itself had “recognized the procedural nature of the amendment when it published the final rule,” and held: “The July 13, 2010, amendment to § 3.304(f) is not a liberalizing rule and …for purposes of determining the effective date for an award of benefits based on that amendment, 38 C.F.R. § 3.114 does not apply to prevent an effective date earlier than July 2010.” 

The Court declined to assign a September 2008 effective date (as requested by VA) –because Mr. Foreman was asking for an effective date earlier than 2008. The Court reversed the portion of the Board’s decision that denied an effective date earlier than July 2010, and remanded for the Board to determine the appropriate effective date.  

FULL DECISION

King: Existence of higher schedular rating is irrelevant to extraschedular analysis

King v. Shulkin, 29 Vet.App. 174 (Dec. 21, 2017)

HELD: “[T]he availability of higher scheduler ratings plays no role in an extraschedular analysis and [] it is inappropriate for the Board to deny extraschedular referral on this basis.” 

SUMMARY: Dudley King is service connected for hearing loss, rated 0%. He appeals for a compensable rating. VA examiners noted “significant effects” on occupation, “poor social interactions,” “hearing difficulty,” “balance problems,” and “dizziness.” One VA examiner summarized the effect of his hearing loss on his life and his work as “difficulty hearing.” 

At a Board hearing, he testified that he could not hear the phone ring; he needed to turn up the volume on the television, which made his wife leave the room; he could not hear bird sounds; and he got angry at having to ask people to repeat themselves. The Board remanded for a new examination, and the subsequent VA examiner stated that his hearing loss did not impact his life or work. The Board denied a compensable rating and extraschedular referral because it found that the rating criteria “reasonably describe” his disability and “provide[] for higher ratings for more severe symptoms.”

He appealed to the Court of Appeals for Veterans Claims. The Court framed the issues as (1) whether the rating criteria adequately contemplated the function effects of his hearing loss such that extraschedular referral was not required and (2) whether the availability of a higher schedularrating is relevant to the extraschedular analysis. 

The Court began its analysis by explaining the relevant law regarding schedular and extraschedular ratings. The Court emphasized that “[t]he goal of the entire rating process is to appropriately compensate veterans. The schedular and extraschedular analyses are just different means of doing so.” 

The Court described the “three-part inquiry” in determining whether referral for extraschedular consideration is warranted. The first element of 38 C.F.R. § 3.321(b) –whether the evidence “presents such an exceptional disability picture” that the schedular ratings are inadequate –requires VA to “compare a veteran’s specific symptoms and their severity with those contemplated by the plain language of the rating schedule.” With respect to this element, the Court noted that “impact on employment is not a symptom.”

If the Board determines that the symptoms or their severity are not contemplated by the rating schedule, the second step requires the Board to determine whether the exceptional disability picture exhibits “other related factors,” such as “marked interference with employment or frequent periods of hospitalization.” In this case, the Board determined that extraschedular referral was not warranted because it found the rating criteria reasonably describe Mr. King’s disability and provide for “higher ratings for more severe symptoms.” It was this second rationale that caught the Court’s attention. 

As the Court recently held in Doucette v. Shulkin, 28 Vet.App. 366 (2017), the hearing loss ratings “contemplate the functional effects of decreased hearing and difficulty understanding speech,” but do not “contemplate all functional impairment due to a claimant’s hearing loss.” The Court in Doucette “provided a non-exhaustive list of functional effects” that are outside the rating schedule – such as “pain, dizziness, recurrent loss of balance, or social isolation” – and “acknowledged the existence of effects that would be inherently outside the rating schedule,”

The Court held that ”[t]he availability of higher schedular ratings plays no role in an extraschedular analysis and [ ] it is inappropriate for the Board to deny extraschedular referral on this basis.” The Court explained that the Board’s logic in such a denial “would functionally invalidate § 3.321(b)(1) entirely,” and provided the following example: Assume a disability is rated 30% for symptoms A and B; and 50% for symptoms A, B, X, and Z. What happens to a veteran who’s rated 30% - but has symptoms A, B, and X, but not Z? “Under the Board’s logic, no matter how significantly that veteran’s earning ability were impaired,” VA would be able to deny extraschedular referral just because the rating schedule provided for a higher schedular rating. The Court stated that “[t]his example is precisely the situation § 3.321(b)(1) was created to address.”

The Court further clarified that the holding of King is not limited to hearing loss claims. “Section 3.321 is applicable to all claims.”

FULL DECISION

Crediford: Service department findings (i.e., willful misconduct, LOD determinations) are binding on VA

Crediford v. Shulkin, 877 F.3d 1040 (Fed. Cir. Dec. 18, 2017)

HELD: The Board cannot “make its own findings on of the facts of line of duty and willful misconduct,” particularly when there are relevant service records before it.   

SUMMARY: Marvin Crediford served in the U.S. Coast Guard from August 1983 to August 1985 and January 1990 to March 1991. In January 1985, he was in a car accident after he had been drinking. Several hours after he had stopped drinking, his blood alcohol level was measured as .12 percent. He was charged with driving under the influence. 

He reported the incident to the Coast Guard, and in April 1985, the local commanding officer issued a report, stating that fatigue and alcohol were responsible for the accident, and that his injuries “were not the result of his own misconduct and were incurred in the line of duty.”

In December 1985, several months after he left the Coast Guard, a memorandum was issued by the Commander of the Thirteenth Coast Guard District. This memorandum referred to a November 1985 “finding” by the Commandant of the Coast Guard that his injuries were “not incurred in the line of duty and were due to his own misconduct.”  

In 2004, Mr. Crediford filed a claim for disability compensation. The RO denied the claim because his injuries were the result of willful misconduct and not incurred in the line of duty. The RO stated that the veteran’s service records did not contain a line-of-duty determination. The RO noted the December 1985 memorandum – but not the April 1985 decision. 

Mr. Crediford appealed and submitted the April 1985 decision. At a Board hearing, he asserted that the December 1985 memorandum was issued “post-discharge, without notice that an LOD investigation was ongoing and was not disclosed.” The Board found the preponderance of the evidence against the claim, noting that his blood alcohol content raised “a presumption” of intoxication that “was not rebutted in this case.” 

The Court of Appeals for Veterans Claims affirmed the Board’s decision, finding that the Board provided adequate reasons for bases for its finding that his Mr. Crediford’s injury was the result of willful misconduct. Neither the Board nor the Court resolved the discrepancy between the April and November 1985 findings regarding willful misconduct. 

On appeal to the Federal Circuit, Mr. Crediford argued that the April 1985 LOD decision should prevail because the December 1985 memorandum was not a line-of-duty determination and the November 1985 document referenced in the memorandum was not in the record. Thus, the April 1985 decision was the only LOD determinationof record that was binding on VA. Mr. Crediford also argued that the Board and the Veterans Court “created a new per se standard or presumption of willful misconduct based solely on blood alcohol level, contrary to VA regulation.” 

The Federal Circuit noted that in-service injuries are presumed to be incurred in the line of duty unless they are caused by the veteran’s willful misconduct or substance abuse. Under VA regulations, drinking alcohol, in and of itself, is not willful misconduct unless “a service member consumes alcohol to enjoy its intoxicating effects, and the intoxication ‘proximately and immediately’ results in the injury.” *7 (citing 38 C.F.R. § 3.301(c)(2)). The Court also noted that service department findings – including findings regarding willful misconduct and line of duty – are binding on VA. *7-8 (citing 38 C.F.R. §§ 3.1(m) and (n)). The Court framed the issue on appeal as “whether the Board had authority to ignore the Service Department’s findings.” 

The Court found that neither the Board nor the Court resolved the conflict between the April 1985 decision and the November 1985 document, and held that “the Board erred in simply making its own findings on the question of willful misconduct when there were service department findings before it.” The Court added that the Coast Guard’s “determinations, made in 1985 when the accident occurred, must be addressed” and that “[i]t was error for the Board to make its own findings of the facts of line of duty and willful misconduct.” The Court remanded for further proceedings to address the question of application of 38 C.F.R. § 3.1(m)-(n). 

FULL DECISION

Ebanks: Unreasonable delay; petition mooted

Ebanks v. Shulkin, 877 F.3d 1037 (Fed. Cir. Dec. 14, 2017)

HELD: Petition for writ of mandamus based on unreasonable delay in scheduling a Board hearing is mooted by the actual scheduling of the hearing – and does not fall within the exception to mootness if the claimant does not have a “reasonable expectation” that he will be subjected to the same action again. 

SUMMARY: Elon Ebanks appealed an RO denial of an increased rating and requested a Board hearing in December 2014. Nearly two years later, in September 2016, he petitioned the Veterans Court for a writ of mandamus to compel the Board to schedule the hearing. The Court denied the petition, and Mr. Ebanks appealed that decision to the Federal Circuit. 

While the appeal was pending, the Board held the requested hearing in October 2017 – nearly three years after his request. Because the hearing was held, the government claimed that the appeal was moot. Mr. Ebanks argued that the appeal was not moot because it falls under the exception for mootness for cases that are “capable of repetition yet evading review.” 

This exception applies when “(1) ‘the challenged action [is] in its duration too short to be fully litigated prior to the cessation or expiration,’ and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Mr. Ebanks asserted that even if he prevailed at the Board, the usual relief was to remand to the RO, which would result in further adjudication. He expected that he would likely ask for a new hearing and would again be subjected to unreasonable delay. The government disputed that argument. 

The Federal Circuit noted that any future hearing on remand would be subject to “expedited treatment under 38 U.S.C. § 7112.” The government also pointed out that Congress recently overhauled the appeals process and argued that any future appeal may be subject to this new regime. The Court found that Mr. Ebanks “has not established that future Board proceedings will be subject to the same delays as is presently the case” and thus “has not shown a sufficiently reasonable expectation that he will again be subjected to the same action.” 

The Court stated that even if the case were not moot, granting Mr. Ebanks’ petition “may result in no more than line-jumping without resolving the underlying problem of overall delay.” The Court added that the issue of delay “seems best addressed in the class-action context,” noting that it had “recently approved the use of collective actions in the Court of Appeals for Veterans Claims,” citing Monk v. Shulkin, 855 F.3d 1312, 1318-22 (Fed. Cir. 2017). 

FULL DECISION

Rossy: Extraschedular consideration for hearing loss not warranted

Rossy v. Shulkin, 29 Vet.App. 142 (Dec. 13, 2017)

HELD: When the only hearing loss problem alleged by a claimant is “difficulty understanding conversations,” referral for extraschedular consideration is not warranted since that complaint is type of symptom and functional effect that is contemplated and compensated by VA’s rating schedule. 

SUMMARY: Jose Rossy served in the U.S. Army from 1949 to 1952. More than 50 years later, he applied for and was granted service connection for bilateral hearing loss, rated 0%. His appeal for a compensable rating was stayed at the Court, pending the outcome of Doucette v. Shulkin, 28 Vet.App. 366 (2017). 

In Doucette, the Court held that the rating criteria for hearing loss contemplate and compensate for “the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts.” Doucetteleft open “the possibility that extraschedular consideration for hearing loss might be warranted by other symptoms or functional effects,” but held that “extraschedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record.” 

Because Mr. Rossy’s complaints were “within the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria,” the Court affirmed the Board’s denial of referral for extraschedular consideration. 

The Court also concluded that extraschedular referral was not warranted based on the combined effects of Mr. Rossy’s various service-connected conditions because this issue was not reasonably raised by the record or the appellant. 

FULL DECISION

Browder: Fiduciary, allegations of misuse of funds

Browder v. Shulkin, 29 Vet.App. 170 (Dec. 12, 2017)

HELD: Petition to compel Secretary to act is dismissed as moot when Secretary finally acts on veteran's allegations of fiduciary's misuse of his benefits. 

SUMMARY: More than a decade prior to this petition, veteran Joe Browder alleged that his VA-appointed fiduciary had embezzled a portion of his benefits. VA refused to investigate and Mr. Browder attempted to appeal to the Board. When VA took no action on his appeal, Mr. Browder petitioned the Court for a writ of mandamus to compel the Secretary to act. 

The Court formed a panel to consider “whether a decision by the Secretary not to formally investigate a misuse allegation may be appealed to the Board and eventually to the Court.” The Court noted that Congress created a statute defining misuse by a fiduciary, 38 U.S.C. § 6106. Yet, the Secretary never issued regulations addressing misuse or explaining how VA is to respond to veterans’ complaints. Instead, VA has created “policy” to respond to misuse allegations. 

After the panel was formed, the Secretary informed the Court that the fiduciary hub involved in Mr. Browder’s case “had reversed course,” conducted a formal investigation, and issued a report, along with notice of his right to appeal that decision. Because Mr. Browder had now received a decision that he could appeal to the Board, the Court dismissed the petition as moot. 

Understanding Mr. Browder’s frustration with this process and acknowledging the “injustice” of his case, as well as VA’s fiduciary policies in general, the Court stated: 

The Secretary, for more than a decade, refused to formally investigate the petitioner’s misuse allegations or allow him to bring them before the Board and ignored many of his arguments. Then, within months of learning that a precedential decision might upend his fiduciary investigation policies, the Secretary mooted the petition by sending out a formal misuse report that strained, filler and all, to reach two pages. It is hard not to see how the Secretary’s actions could come across as cynical, and they are especially concerning given the “growing consensus outside VA that the fiduciary system is broken.” 

FULL DECISION

Frost: Secondary service connection

Frost v. Shulkin, 29 Vet.App. 131 (Nov .30, 2017)

HELD: “[F]or a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” 

SUMMARY: In 1980, during his active duty service, veteran John Frost was involved in a train accident, injuring his shoulder and leg. In 1982, following his separation from service, he got into a fight with a store proprietor and was shot in his neck. In 1985, he was awarded non-service-connected pension for left extremity paralysis due to the 1982 gunshot wound (GSW). 

In 2001, he filed a claim for service connection for PTSD related to the 1980 train accident. He reported that after the train accident, he received two Article 15 punishments for fighting, occasionally became violent, and that his wife filed for divorce shortly after his separation from service. A VA examiner diagnosed PTSD and noted recurring memories of the 1980 train accident. The Regional Office granted service connection for PTSD. 

A few years later, he filed a claim for the residuals of the 1982 GSW as secondary to his now service-connected PTSD. The RO denied the claim and he appealed, asserting that his PTSD caused him to become involved in the fight that resulted in the GSW. The Board denied the claim, finding that he was first shown to have PTSD in 2002, twenty years after the 1982 incident. 

On appeal to the CAVC, the Court examined the regulation governing service connection on a secondary basis, 38 C.F.R. § 3.310, and held: “Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected, or even diagnosed, at the time the secondary condition is incurred.” Because there is no reference in § 3.310 to a temporal requirement, the Court rejected VA’s argument that Mr. Frost’s claim was barred as a matter of law. 

The Court recognized the “basic logic” that there must be a primary service-connected condition in order to establish secondary service connection, but clarified that “at the time that any decisionestablishing entitlement to secondary service connection is rendered, there must be a primary service-connected condition.” The Court concluded that “for a veteran to receive secondary service connection on a causation basis under § 3.310(a), the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.” The Court remanded the claim to the Board to determine whether a VA examination is necessary to determine whether the GSW residuals are proximately due to or the result of his service-connected PTSD. 

FULL DECISION

Lyles: Rating knee disabilities

Lyles v. Shulkin, 29 Vet.App. 107 (Nov. 29, 2017)

HELD: “[E]valuation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa.” Entitlement to a separate rating depends on whether the symptoms have already been compensated under another DC. For musculoskeletal conditions based on limited motion, a symptom has not been compensated if it “did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet.App. 202 (1995).”

SUMMARY: Thomas Lyles sought an increased rating for residuals of his service-connected left knee disability, which was rated 30% under DC 5257 for instability. After ten years of appeals, he was finally granted an additional 30% rating under DC 5261, based on limited extension. He appealed to the Court, which remanded for the Board to address whether he was entitled to an additional separate rating under DC 5258 (dislocated semilunar cartilage) or 5259 (removed and symptomatic semilunar cartilage). 

The Board obtained a new VA joints examination in which the examiner noted objective evidence of pain, tenderness, and crepitus, but concluded that he could not offer an opinion as to whether pain, weakness, fatigability, etc., resulted in additional functional loss because there was “no objective evidence” to support such loss. The Board denied an additional rating, finding that his additional symptoms were “already ‘encompassed’ by his current evaluations under DCs 5257 and 5261.” The Board determined that Mr. Lyles was not entitled to a higher rating under DeLucabecause there was “no clinical evidence” of further impairment and the VA examiners “‘could not say without resort to mere speculation what such impairment would be.’” The Board concluded that an additional rating would violate the rule against pyramiding, and denied the claim. 

On appeal to the Court, Mr. Lyles argued that the plain language DCs 5257 and 5261 shows that they only cover instability and limited extension, and do not include not all the manifestations of his left knee disability – popping, locking, grinding, pain, and swelling. He acknowledged that VA mayconsider these symptoms under DC 5261, pursuant to DeLuca, but that those manifestations had not been compensated in his case. The Secretary argued that his left knee symptoms had already been considered under DC 5261 and could not be rated again under DC 5258 or 5259. 

The issue before the Court was whether “evaluation of a knee disability under DC 5257 or 5261 preclude, as a matter of law, separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” The Court held that it does not. 

DC 5257 covers “recurrent subluxation or lateral instability” and DC 5261 covers limitation of leg extension. See 38 C.F.R. § 4.71a. DC 5258 provides a 20% rating for “cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint.” DC 5259 provides a 10% rating for “cartilage, semilunar, removal of, symptomatic.” Id. 

The Court found that the plain language of 38 C.F.R. § 4.71a “does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC,” Lyles, 29 Vet.App, at 114(citing Esteban v. Brown, 6 Vet.App. 259, 261 (1994) (examining separate ratings under scar DCs) and Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013) (regarding separate ratings under musculoskeletal DCs)). The Court noted that VA’s rating schedule “is replete with rules that prohibit separate evaluations of other disabilities,” such as 38 C.F.R. § 4.96 (prohibiting separate ratings of specific respiratory conditions), § 4.113 (regarding rating digestive conditions), § 4.115 (prohibiting separate ratings for heart conditions and nephritis). Id. The Secretary’s demonstrated ability to “craft regulations that expressly forbid” separate ratings strongly suggests that the absence of such language in § 4.71a “must be read as a deliberate decision to permit separate evaluation.” Id. at 115. 

The Court briefly explored the regulatory history of § 4.71a, and held that the language of the regulation, its history, and the surrounding regulations “unambiguously reflect that evaluation of a knee disability under DC 5257 or 5261 does not preclude, as a matter of law, separate evaluation of a meniscal disability of that same knee under DC 5258 or 5259,” and vice versa. 

As to whether Mr. Lyles’ symptoms have already been compensated, the Court found that DC 5257 “compensates veterans only for knee impairment resulting in recurrent subluxation and lateral instability,” and thus reversed the Board’s determination that this DC also compensated him for pain and swelling. 

Because DC 5261 is based on limitation of motion, the Court discussed the relevant regulations pertaining to rating musculoskeletal conditions based on limitation of motion – 38 C.F.R. §§ 4.40, 4.45, and 4.59. These regulations provide for higher ratings where there is evidence of (1) functional loss due to pain and other factors, (2) reduction of normal movement, or (3) an “actually painful, unstable, or malaligned” joint. *13 (citing Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca, 8 Vet.App. 205-07; Southall-Norman v. McDonald, 28 Vet.App. 346, 352 (2016); and Petitti v. McDonald, 27 Vet.App. 415, 425 (2015)). Lyles, 29 Vet.App. at 117-18. 

The Court stated that the purpose of the rating schedule “is to ensure that a claimant is properly compensated, but not overcompensated, for the actual level of impairment.” Id. at 118. Mr. Lyles conceded, and the Court agreed, that each of his additional symptoms couldbe compensated under DC 5261 – by assigning a higher rating pursuant to DeLucaand §§ 4.40, 4.45, and 4.59. The Court found, however, that the Board’s discussion of §§ 4.40 and 4.45 demonstrates that these symptoms have not been compensated in Mr. Lyles’ case. The Court based this determination on the Board’s “failure to address whether swelling, popping, locking, or grinding caused additional functional limitation” that would result in a higher rating under DC 5261 and DeLuca, and the Board’s improper reliance on medical opinions in which the examiners refused to offer the requested opinions regarding additional functional limitation during flare-ups. Lyles, 29 Vet.App. at 419-20 (citing Sharp v. Shulkin, 29 Vet.App. 26, 36 (2017)). 

The Court remanded for the Board to determine whether a separate evaluation is warranted under DC 5258 or 5259. 

Advocacy Note: Lylesdemonstrates how VA’s own regulations – 38 C.F.R. §§ 4.40, 4.45, 4.59 – require adjudicators to assess additional functional loss based on limited motion or painful motion. The Court has repeatedly admonished VA for not complying with its own regulations when rating musculoskeletal conditions, and the cases cited in Lyles reflect this history. 

FULL DECISION

Gray: FC cannot review M21-1 revision to "inland waterways" definition

Gray v. Secy of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. Nov. 16, 2017)

HELD: The Federal Circuit lacks jurisdiction to review VA’s policy manual revisions that exclude Navy personnel who served outside the “inland waterways” – including ports, harbors, and open-water bays – because the M21-1 policy manual is merely “guidance to VA adjudicators” and “lacks the force and effect of law.”

SUMMARY: Robert Gray is a Blue Water Navy veteran who challenged VA’s exclusion of Da Nang Harbor from its definition of “inland waterways” for purposes of presumptive service connection for conditions related to herbicide (Agent Orange) exposure. The Veterans Court concluded that VA’s definition was “both inconsistent with the regulatory purpose and irrational,” and remanded for VA to “reevaluate its definition of ‘inland waterway’ to be consistent with [38 C.F.R.] § 3.307(a)(6)(iii),” the regulation governing the presumption of herbicide exposure.  

Instead of amending the regulation – which would have required notice-and-comment rulemaking – VA amended its M21-1 policy manual with language that continued “to exclude all Navy personnel who served … in [Vietnam’s] ports, harbors, and open waters [] from presumptive service connection for diseases or illnesses connected with exposure to Agent Orange.”

Mr. Gray challenged the amendment to VA’s policy under 38 U.S.C. § 502, which governs judicial review of rules and regulations. This statute limits the Federal Circuit’s jurisdiction to agency actions that are subject to two provisions of the Administrative Procedure Act – 5 U.S.C. § 552(a)(1) and § 553. The question in this appeal is whether the revision to the M21-1 falls under § 552(a)(1). The Federal Circuit held that it did not.

This provision covers agency actions that are published in the Federal Register and are “substantive rules of general applicability as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” In other words – notice-and-comment rulemaking. The Federal Circuit stated that there are three factors to consider in assessing “whether an agency action constitutes substantive rulemaking … (1) the [a]gency’s own characteristics of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency.” (quoting Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017).  

The Court found that the M21-1 is meant to guide VA adjudicators, but “is not intended to establish substantive rules.” The Court noted that the Board is not bound by the M21-1 – and thus “where the action is not binding on private parties or the agency itself, we have no jurisdiction to review it.”

The Court found that Mr. Gray – and his fellow Blue Water Navy Veterans – still had other options to pursue. First, if they are “adversely affected by a M21-1” provision, they can challenge that provision on direct appeal. Second, they can petition VA for rulemaking. (Mr. Gray pointed out that both options were currently pending.) The Court recognized that it would likely take years for “individual adjudications or petitions for rulemaking” to run their course. Unfortunately, the sad reality of this situation does not change the Federal Circuit’s jurisdiction.

In a partial dissent, Judge Dyk argued that DAV was wrongly decided and that it unnecessarily narrows the Court’s jurisdiction. In Judge Dyk’s view, the “relevant question for jurisdictional purposes … is whether the Manual revisions here are properly characterized as ‘statements of general policy or interpretations of general applicability.” If so, the Federal Circuit would have jurisdiction to review the challenge. The problem with DAV (and, now, the majority opinion in this case), is that it essentially enables VA to evade judicial review by simply not publishing the revision in the Federal Register.

FULL DECISION

Event: 2017 Veterans Clinic Symposium - Burn pits

Nov. 10, 2017 - University of Missouri School of Law, Columbia, MO

Modern Warfare: Challenges Arising from the Gulf War and the War on Terror

ABK will present on "Environmental Challenges: Burn Pits."

LINK TO PROGRAM: http://law.missouri.edu/faculty/symposia/veterans-clinic-symposium/